We often get calls from family members who are eager to start preparing for a death of a loved one. Perhaps mom has entered hospice. Maybe the hospital has indicated that it's soon time to remove life support for a sibling. Or dad is failing rapidly, and the family just wants to be prepared. What can we suggest when preparing for a death in the family? In a nutshell, our usual advice is: you don't want to spend your time with us. There's usually not that much that can be done to make things easier after a death. Most of the hard work of grieving, and the legal transitions, will have to wait until the actual event. Here's what we think does make sense in most cases: spend time with your loved one. Even if they don't seem to know you're present, you'll feel better later (and the rest of your family will, as well) if you are there as much as possible. But don't you need to move money from the trust into an easily accessible bank account? No. Can you make burial arrangements and pay for them? Sure -- but you don't need us for that process (and much of it really needs to wait until family begins to gather, anyway). Can you fill out the probate petition, or start the trust notifications? Not really. Or, more precisely, you could do those things, but you'll be redoing them later anyway, and it's probably not the best use of your time. Even immediately after the death of a loved one, we might not need to be the first stop. We'd like to see you (or whoever is going to administer the estate, or the trust) within a few days or a couple of weeks of the death, but there's no need to stop by our office on the way home from the funeral. And let everyone know that there won't be a check for them at the funeral itself. Plus we do have a checklist you might download and review. Then let's talk.

Clients often ask us to update their estate planning documents by preparing codicils or trust amendments. The idea of a codicil, particularly, is rooted in centuries of experience. If all you want to do is to make a minor change, wouldn't it be easier to sign a codicil than a whole new will? The same thinking can apply to a trust amendment. Wouldn't it be easier (and, probably, less expensive) to just prepare a 2-3 page document amending only the provisions that need to be updated? The truth is that few lawyers prepare codicils in the modern age. Why not? Because it's so easy to just sign a new will. And it's better for the client, too. Why? Because the client only has to keep track of one document, and can shred or destroy the old, superseded will. We're surprised how often our clients manage to separate their estate planning documents. Was there a trust amendment? Everyone seems to remember one, but it's not in the binder with the trust document itself. Where should we look for it? And what did it say? Our practice with regard to codicils and trust amendments? We haven't prepared a will codicil in decades. And we prefer to create a whole new trust rather than a second amendment. If the first amendment truly does just change one provision, and it looks like that's going to be the only amendment for a few years, we might agree to amend the trust. Once. One important principle: we usually prefer to "restate" the trust, rather than simply amend it (or, heaven forfend, create a whole new trust). Why? That allows the account title and real estate deed to stay the same. It's still the O'Brien Family Trust Dated March 17, 1997, even though it was restated in 2010 and again in 2023.

From time to time we relate stories about do-it-yourself estate planning gone awry. It's not that we get pleasure from explaining common mistakes. And we're not just trying to terrify people about self-help. We're trying to make it clear that the problems created by trying to save a couple dollars in legal fees so often end up costing far more than the legal advice would have cost. And the kinds of problems are hard to predict. Things that might seem reasonable to a non-lawyer can end up violating arcane -- or even well-known -- legal principles.

Trustee disclosure is required by Arizona law. But how much disclosure? Arizona's Trust Code sets some minimum requirements. The trustee of an irrevocable trust must let the "qualified" beneficiaries know that there is a trust, and how to reach the trustee. On request, the trustee must provide at least some financial information. But that's the minimum. In most (but not all) circumstances, we recommend that trustee disclosure include much more information. Bank and brokerage statements, time records and copies of trust documents themselves are all possible items of disclosure. Should they all be shared freely? As we discuss in this week's podcast episode, trustee disclosure is often a fraught topic. If the trustee is a family member, there will be family dynamics to consider. Failure to provide complete information might lead to suspicion and anxiety. Beneficiaries might be surprised to learn about past trustee decisions -- like when and how to sell assets, or billing for time and expenses, or division of personal effects. On the other hand, there may be good reasons for withholding full information. For one thing, the settlor of the trust might have explicitly requested limited disclosure. Or beneficiaries might be poorly served by having too much detail. And beneficiaries who receive a single (often small) dollar amount don't really need to get all the same disclosure that more substantial beneficiaries are entitled to receive. How much trustee disclosure is required? How much is advisable? As in so many legal arenas, the answer is a clear "it depends."

What are spendthrift trusts? It's pretty simple, really. A spendthrift trust has language directing the trustee not to honor attempts by the beneficiary's creditors to reach the trust assets. It also prohibits the beneficiary from encumbering the trust's assets on their own. More significant, though, is what benefits accrue as a result of the status of spendthrift trusts. The value of adding spendthrift language to a draft trust is to give the beneficiary at least some measure of creditor protection AND the donor some peace of mind. Join us as we talk about spendthrift trusts, what kinds of trusts qualify for the designation, and why you probably want any trust you create to include similar language. Also, we talk about why you can't just create a trust for yourself and give yourself spendthrift protection. At least not in Arizona.

Maybe you are involved in a trust administration proceeding. You might have created a revocable trust and wonder what you need to do to maintain it during your life. Perhaps you and your spouse created a trust, and you wonder what needs to be done now that your spouse has become incapacitated. Or maybe you are named as successor trustee and the original trustee has died. So do you need to hire an attorney in each of those situations? Or can you handle trust administration on your own? Our online mantra: we are Arizona attorneys and can't give you advice about your duties or abilities in other states. You should get local and particular advice about your situation and circumstances. But we can generalize about some of the issues -- and difficulties. First, some reassurance: you probably do not need any regular or active advice about administering the revocable trust you created. Of course you should check in with your attorney periodically to see what has changed. That can include changes in the law and (more often) changes in your circumstances. But what about administering a trust after the death of the settlor? That can be trickier. At least under Arizona law, there are a number of things that you are supposed to do when you take over. And there are more items to cover to satisfy federal tax authorities. Your duties as trustee are specific, sometimes technical and often non-intuitive. So you are probably well-advised to, well, seek advice. Trust administration is not especially easy, but a qualified attorney will probably provide more benefits than the (usually modest) cost.

SSI and SSD(I). It's so hard to keep them straight. Especially since SSDI is often referred to (including by us) as SSD. Supplemental Security Income (SSI) is a disability-based income program that requires recipients to meet financial eligibility tests. Social Security Disability Insurance (SSDI or SSD) is also a disability-based program but does not require that the recipient meet income or asset eligibility tests. The definition of "disability" for SSI and SSD is identical. But only the former program has a $2,000 cap on available resources. And if an SSD recipient has thousands of dollars of investment income every month, they can still qualify for benefits. That's not true for SSI. You can see why the programs are confusing, and why recipients have a hard time figuring out the eligibility rules. In this week's podcast episode, we try to uncomplicate the programs to help you understand them.

This week, a little inside baseball: we talk about Clio, our law office case management program. Fleming & Curti, PLC, had a decades-long relationship with Time Matters, starting with the DOS version in about 1992. It was once the leading case management program for law firms. We used it extensively, and in fact were recognized as national leaders in the use of the program. But it stopped adapting in the past decade or so, and it became obvious that it was time to move on. A relative newcomer in the legal technology world, Clio is cloud-based, creative and still developing new capabilities. So we made the switch four months ago. It has been invigorating, terrifying and awesome, all at the same time. Why do our clients (or you) care? Because of the expanded abilities the new software makes available. For instance, Clio offers: Client "portals." Want access to digital copies of your estate planning documents, or pleadings in your guardianship matter? We can set that up. Want to send us confidential documents but don't trust email? We can help with that, too. Billing. Our prior program also handled billing, but it was a clunky, unattractive arrangement. Clio lets us easily bill electronically, and gives clients a simple "click-to-pay" link that allows payment by credit card. That helps both of us -- clients and the firm -- immensely. Meetings. Yeah, any case management program is going to make it possible to schedule meetings. But Clio lets us set up Zoom meetings easily, and can update everyone with the link and reminders. And we can set reminders for in-office and telephone meetings, as well (though we're moving slowly, so we don't remind you of your dentist's office with flurries of reminders). Emails. Our old program allowed us to save emails to your file, and to share them with the whole office. But it was extremely hard to reply or forward when necessary. Now we can reply to an email even if it was sent to someone else -- and we can print out emails when necessary, too. Cloud availability. We will be able to look up documents, contact information and other data without having to go into the office. For a practice that includes a lot of fiduciary responsibility, that is huge. If a trust beneficiary or guardianship principal ends up in the hospital over the weekend, for example, we can respond faster without having to get to the computer system in the office. That's just a sampling. Clio is likely going to dramatically change our practice for the better. We just have to get through the transition phase.

When you establish a special needs trust pay particular attention to the most important part: choosing a trustee. The choice of trustee really determines how well the trust will work. There are several different types of special needs trust. Some are established by a parent or other person for the benefit of someone with a disability. Others are established by the individual themselves, or their guardian or a court. There are also pooled trusts. But they all share a common element: choosing the trustee controls how well the trust will satisfy the beneficiary's needs. Who makes a good trustee? As we discuss in this week's podcast episode, the perfect trustee knows law, accounting, public benefits, taxes, investing, social work and medicine. Oh, and they are immortal. Family members absolutely should be involved in care and expenditures for the beneficiary's benefit. But they don't always make the best trustees. Sometimes choosing a professional trustee is a better idea. Sometimes the value of a pooled trust can be the easy involvement of a professional group. Oh, and by the way: the same considerations apply to choosing a trustee for any trust. But they get heightened when the beneficiary has a disability and the public benefits system kicks in.

At Fleming & Curti, PLC, we often act as fiduciary. We might be a trustee, or a guardian or conservator, or an agent. In all of those roles, we try to make regular home visits. Why do we feel strongly about home visits? Because that's the best way to get to know our beneficiaries, principals and protected individuals. Regular visits are actually required in cases of guardianship, but we think the same idea applies to other fiduciary roles, as well. And we encourage other fiduciaries to adopt the same approach. Listen to our discussion about the concept, and (if you are a fiduciary, or will step into the role) please take inspiration from the concept. Want to dive a little more deeply into the need for visitation with a beneficiary/principal? This 2014 article from Estate Planning magazine, written by two special needs practitioners from New York, tell the story about how things can go wrong for a fiduciary.

Clients often come to us because they believe they need a guardianship. Perhaps their spouse has ended up in assisted living or a nursing home. Maybe their developmentally disabled child just turned 17 and they have been told they should get the process underway. Or a parent has become increasingly confused and a dementia diagnosis seems inevitable. Here's a common thread for those sessions: we usually begin by challenging whether they actually need a guardianship. Not whether they could prevail, but whether there is any good reason to start the legal proceedings at all. Sometimes you genuinely do need to pursue a guardianship. And if so (and if your family member is living in Arizona) we're usually happy to help. But, though it works against our own financial interest, we tend to be slow to encourage people to initiate the guardianship process. Why do we think you may not need a guardianship? For several reasons: You might have the authority to make medical and placement decisions under Arizona's "surrogacy" law. Perhaps there's a health care power of attorney -- or maybe the principal could sign one. Even if they have a disability. There are some kinds of things that family often want to do that simply are not within the authority of a guardian. In other words, it might not help. Of course there's more. Join us for this podcast episode and we'll explain our view.

When a former client becomes incapacitated, we might hear from family members asking that we share documents and offer legal advice. We might take a little time to figure out what we can share and what additional information we might need to get. If our original client (the one who signed the documents) is still alive, we might not be able to give legal advice to their trustee/agent. We wrote about this issue last week in our newsletter/blog post. But it's nuanced enough that we wanted to talk about the issue as well. As we explain here, there are really two separate issues. First, we may have confidences and/or secrets that we will need to keep private. And second, there may be a conflict of interest that prevents us from giving any legal advice. The second problem (the conflict of interest) goes away on the death of our former client. So if you call to let us know that our client has died, and to seek legal counsel, at least we won't have the conflict concern to deal with. When we can't help, we'll try to get you to a good lawyer who can offer legal advice. Just don't expect us to shift from representing your parent/sibling/child to representing you as fiduciary -- at least not while they're still alive. And we need to analyze whether we can share documents in the meantime.

You've carefully considered your estate plan, and decided it's important to avoid probate. One way to accomplish that: use beneficiary designations to direct assets to named beneficiaries. But don't forget the importance of maintaining those beneficiary designations over time. Understand that there are effects of your simplified estate planning. One point to consider: maintaining your beneficiary designations is key to keeping your plan current. And don't be surprised if we tell you that you might want to rethink the very idea of your beneficiary designations. Too often we see clients who think they can set the beneficiary designations and forget about them. But as your assets change, and your family dynamics shift, those probate-avoidance techniques can skew your planning. That's why you have to constantly work to maintain those beneficiary designations. Sometimes the beneficiary designations themselves are a problem. If, for example, you name your four children as beneficiaries on your home, you've avoided probate. But you've also made your four children involuntary partners in everything from utility payments to decisions about selling, to managing for rental income. And if they don't agree, the beneficiary designation might have saved probate costs but incurred terrific financial and emotional costs in operation of the property.

The HEMS standard, common in trusts, is an arcane expression. That does it mean, and what's the significance? If the trust directs the trustee to pay attention to the "health, education, maintenance and support" of a beneficiary, that's magic language intending to invoke the HEMS standard. It means that there is a recognizable test to apply to judge the trustee's decisions. It often means that the trustee's authority is limited in a way that makes the trust's income tax effect easier to calculate and understand. Sometimes the HEMS standard works against the trust's goal. Then a trust might direct the trustee to support the beneficiary's happiness, or well-being, or some other, amorphous description. This is often the case with special needs trusts, for example. That trust may be maintaining a fine line between favorable tax treatment and possible inclusion in the beneficiary's estate. Whatever the purpose, who decides which distributions are for "health, education, maintenance and support"? Some expenditures seem obvious. Others are arguable. In this week's podcast episode, we talk about the HEMS standard, what it means and how to interpret it. There are few bright lines, but we can give you some familiarity with the language, at least.

529 Plans (for education) and ABLE Act accounts are tax cousins -- sort of. Recent tax law changes bring them closer together. We update you on how the new rules can work

Arizona law about giving notice in probate, guardianship and conservatorship proceedings has recently changed. What might have been a well-meaning piece of legislation has significantly increased the cost of court proceedings. And there's very little reason to believe that anyone is more likely to know about court hearings as a result. Giving notice is a complicated set of requirements -- in Arizona and elsewhere. Some people are directly involved in probates, trust administrations, guardianships and conservatorships. Think the personal representative, or trustee. Same for the person subject to a guardianship or conservatorship. Others are more tangentially involved. Perhaps there is a trust beneficiary, or an heir in a probate. Maybe an heir has even been disinherited. Next of kin might be on the notice list for a guardianship or conservatorship. Under the new rules, most of those people have to be given notice by registered or certified mail (though a growing subset have to be personally served). Apparently, the Arizona legislature doesn't really know what registered or certified mail even means. We talk about giving notice and how the new rules complicate court proceedings in this week's Elder Law Issues podcast. It's a little bit of inside baseball, if you will -- but it's a good illustration of how the sausage gets made (to mix our metaphors).

We often find ourselves representing couples in development of a comprehensive estate plan. Do both spouses/partners need separate counsel? Not usually, but everyone has to appreciate that there are challenges. As we discuss in this podcast episode, there are both ethical and practical issues inherent in representing couples. We owe a duty of confidentiality to each partner -- but we also owe a duty of disclosure of any information that might affect either spouse's planning. Confidences from one spouse are rare -- but not unheard of. Everyone needs to understand what might happen if an actual conflict does arise in our representation. There are also practical considerations in representing couples. Will every communication go to both partner's email and physical mail addresses? Will we accept editing and suggested changes from one partner, or require both to communicate? Can we have a follow-up meeting with only one spouse -- and if so, do we need to affirmatively tell the other spouse about the meeting? And what happens if -- perhaps years after the estate planning is completed -- a married couple divorces. Can we continue representing both halves of the couple, or either? What duty might we have to notify one former partner about the other former partner's appointments and actions?

Last week the Arizona Court of Appeals decided that people under guardianship do not automatically lose the right to vote. In this podcast episode, we discuss the case and its implications for other individuals. As we explained in a recent issue of our newsletter, the significance for people who already have guardians appointed is hard to analyze. But new guardianship orders should not result in loss of the right to vote unless someone initiates a separate proceeding to suspend voting rights.

Happy birthday to Fleming & Curt, PLC, partner Robert Fleming. Now that he's just turned 72, it's time for him to start thinking about required minimum distributions (RMDs). One of the occupational hazards for estate planners is that it's hard to just have a happy birthday celebration. We have to pay attention to the side effects of reaching a certain age. In this case, the "certain age" is 73 -- just one year away and requiring some planning. That's especially true since the required beginning date (when RMDs are mandatory) is actually a whole year long (sort of). So, as we explain, if you're also turning 72 anytime this year -- you need to be prepared for the RMDs that will begin next year. Or will they?

Supporting autonomy is an important goal for fiduciaries. Whether acting as guardian (of the person), conservator (of the estate), agent or trustee, a fiduciary's role should focus on the principal's self-determination. That can be a challenge. The first difficulty may be figuring out what the principal would want -- or would have wanted, if they had anticipated the current situation. And then there's the problem of fiduciaries who disagree with their principals' wishes. There's plenty of information available describing the fiduciary duty in a financial environment. There's far less information or direction when the fiduciary duty involves health care, social decisions, placement and the like. But the duties are similar in both contexts. In this week's podcast, we discuss the fiduciary's duty to support autonomy of the principal. Join us for a discussion of that duty, and what supporting autonomy (and self-determination) actually means. We talk about how we make decisions when we act as fiduciary, and what you should do when you act in a similar role.